LAXMIBAI Vs. RAMCHANDRA RAGHO SAWANT

JUDGEMENT

(1.) This appeal has been filed against the order of the learned Judge of the Bombay City Civil Court who has dismissed the appellants chamber summons for bringing themselves as heirs of the original plaintiff on record on the ground that the same was barred by limitation and that there was no justifiable ground for condonation of the delay. By the self-same order, the learned Judge also held that the suit stood abated. For the reasons which will be mentioned presently, both the orders passed by the learned Judge have got to be and are being set aside by this order.

(2.) The facts are very few and simple. Original plaintiff, one Sonu Balu Surve, filed a suit against defendant Ramchandra Ragho Sawant, Suit No. 3000 of 1969, for various reliefs. From the reliefs claimed, it will be seen that the property involved was of an extremely valuable character. A declaration was sought from the Court that the suit property, namely, Chawl House No. 512 and the land thereunder was of the plaintiffs ownership. Further, possession of the same was asked for and also an injunction against the defendant in connection with the said property was claimed. In addition to the same, certain monetary claims were made against the defendant. By Clause (f) of the Prayer Clause in question, the plaintiff also asked for appointment of the Receiver of the said property pending the hearing and disposal of the suit. Along with the suit, it appears from the Roznama, the plaintiff also took out a notice of motion. The Roznama does not mention as to what were the prayers in the notice of motion and that question is not even very much relevant for the purpose of this appeal. But probably the notice of motion was taken out for appointment of the Receiver of the suit property, or for suitable injunction in respect of the same, during the pendency of the suit. From the Roznama it appears that the suit was filed some time before 27-8-1969 because the first date mentioned in the Roznama about the hearing of the same is 27-8-1969. From the Roznama, it is further seen that the notice of motion is 27-8-1969. From the Roznama, it is further seen that the notice of motion was dated 31-7-1969 and it came up for hearing on 28-8-1969. The order passed on that date makes it clear that even though the affidavit in support of the notice of motion was received by the defendant, he had not filed any affidavit by way of reply to the same. Instead of, however, giving further time to the defendant to file the affidavit in reply the plaintiffs Advocate agreed that he was prepared to proceed with the hearing of the notice of motion upon the understanding that the statements made by the plaintiff in the affidavit in support of the notice of motion as well as in the plaint need not be taken as admitted by the defendant merely because no reply-affidavit was filed by the defendant. This was evidently with a view to avoiding any further delay in the matter of getting the interim relief claimed by the plaintiff. It appears that after the notice of motion was heard for some time, the defendant was prepared to give certain undertakings. In that view of the matter, those undertakings were recorded by the Court and hence the prayer in the notice of motion was not pressed with by the plaintiff and the notice of motion was thus disposed of virtually in favour of the plaintiff.

(3.) The written statement was filed by the defendant on 17-12-1969 and thereafter the suit was transferred to the list of long causes and there it stood waiting in the long queue of the long cause suit knocking the door of justice from the Court. The plaintiff had no other alternative but to wait for his turn to have his suit decided. He waited long, for 10 years, but ultimately could wait no longer in the physical sense and in fact, died on 5-10-1979. The suit remained pending.